On Wednesday, in Decker v. Northwest Environmental Defense Center, the Supreme Court ruled that runoff from logging roads does not constitute a discharge from a point source that requires an NPDES permit. The decision upholds EPA’s interpretation of its own regulations and overturns – what a surprise! – a 9th Circuit decision which had held that permits were necessary for logging runoff.

While EPA got the result that it wanted here, the decision may come back to haunt it in the long run. The decision was largely based on what is commonly known as Auer deference, the rule that courts will defer to an agency’s interpretation of its own regulations unless that interpretation is “plainly erroneous or inconsistent with the regulation.” After a thorough review of the various relevant regulations and a dip or two into the Oxford American Dictionary, and after noting that the agency’s interpretation need not be “the best one”, the Court found EPA’s interpretation “permissible.”

So, why should EPA be concerned? Justice Scalia, at his most curmudgeonly, dissented on the ground that Auer should be overturned because it grants too much authority to agencies. Justice Scalia rejected out of hand what I would have thought would be the simplest and most obvious defense of Auer: that if courts defer to agency interpretation of statutes under Chevron, shouldn’t they, a fortiori, defer to agency interpretation of the agency’s own rules? Apparently not. To Justice Scalia, Chevron deference merely allocates to agencies, rather than courts, the primary duty of interpreting statutes, but allowing agencies to interpret their own regulations has the dangerous result of concentrating both the writing and interpretation function in one branch of government.

I don’t buy it, but it’s important to note that, while Justice Scalia was the sole dissenter, Justice Roberts wrote a concurring opinion, joined by Justice Alito, stating that, while Decker was not the proper case to reassess Auer (a cynic might say that Justice Roberts reached that conclusion because EPA was aligned with industrial interests, rather than the environmental NGOs, in Decker), they were both open to reviewing Auer in the proper case.

Sounds like three votes to me. Somewhat surprisingly, Justice Thomas joined neither the concurrence nor the dissent. Justice Kennedy wrote the majority opinion, so he clearly still believes in Auer. Without Kennedy and with Thomas a cypher at this point, the votes to revisit Auer may not be there. In any case, it is worth noting that Justice Breyer, who is Justice Scalia’s frequent sparring partner on administrative law issues, took no part in the decision. I look forward to his spirited defense of Auer when the time comes.

So let me get this straight. In Northwest Environmental Defense Center v. Brown, the United States took the position (as an amicus) that, under EPA’s long-standing silviculture rule, NPDES permits are not required for stormwater runoff from logging roads that ends up in ditches and culverts, and that such runoff is not associated with industrial activity. The 9th Circuit rejected that position and a number of parties (not including the United States) combined to file two different petitions for certiorari with the Supreme Court.

But in its subsequent amicus curiae brief to the Supreme Court, the United States urged the Court to reject the cert petitions -- despite continuing to insist that, on the merits, the 9th Circuit erred by not giving deference to EPA’s interpretation of its own regs. The United States’ rationale? Three in number: (1) “no square circuit conflict exists;” (2) Congress has placed a short term (through September 30, 2012) moratorium on EPA implementation of the 9th Circuit decision and bills (H.R. 2541; S. 1369) on the issue are pending in both houses of Congress; and (3) EPA issued a Notice of Intent (the day before the United States filed its amicus brief) that it planned to amend its Phase 1 stormwater rules to clarify that stormwater discharges associated with logging roads did not require an NPDES Permit.

So, er, um, the timber industry should hope that the Congressional moratorium gets extended…, or one of the bills pending before Congress providing relief on this topic gets enacted…, or EPA puts its nascent rulemaking efforts into overdrive to promulgate amended Phase 1 Stormwater rules before the moratorium expires or a bill is enacted…, or the Court rejects the United States’ position, hears the case and provides some guidance.

American College of Environmental Lawyers, The ACOEL, is a professionalassociation of lawyers distinguished by experience and high standards in the practice of environmental law, ethics, and the development of environmental law.